New cate­go­ry of con­tract in the Civil Code

Law­ma­kers adapt gene­ral con­tract law to account for pro­gres­si­ve digitization

The EU Direc­ti­ve on cer­tain aspects of con­tracts for the sup­p­ly of digi­tal con­tent and ser­vices (the Digi­tal Con­tent Direc­ti­ve) (PDF only in Ger­man) was adopted in the cour­se of the pro­gres­si­ve digi­tiza­ti­on of the inter­nal mar­ket and the exten­si­on of con­su­mer rights. The sta­tu­te imple­men­ting this Direc­ti­ve into natio­nal law makes addi­ti­ons to con­tract law by inser­ting new Sec­tions into the Civil Code, begin­ning with § 327, which estab­lish con­tracts for digi­tal pro­ducts as a new con­trac­tu­al cate­go­ry as of 1 Janu­ary 2022.

Unli­ke Direc­ti­ve (EU) 2019/771 on cer­tain aspects con­cer­ning con­tracts for the sale of goods, which appli­es to the sale of goods with digi­tal ele­ments, the Digi­tal Con­tent Direc­ti­ve sets rules for con­tracts for the sup­p­ly of digi­tal pro­ducts, which are defi­ned in § 327(1) of the Civil Code as con­tracts rela­ting to digi­tal con­tent or digi­tal ser­vices. Under the Direc­ti­ve, “digi­tal con­tent” is defi­ned as data which is pro­du­ced and sup­pli­ed in digi­tal form, such as e.g. com­pu­ter games, soft­ware and music files. The pro­vi­si­ons of the Digi­tal Con­tent Direc­ti­ve also app­ly to con­su­mer con­tracts rela­ting to the sup­p­ly of digi­tal pro­ducts in which the con­su­mer pro­vi­des per­so­nal data in lieu of pay­ment (“pay­ing with data”).

In addi­ti­on, the pre­sence of defects in digi­tal pro­ducts is to be deter­mi­ned in accordance with the new defi­ni­ti­on of “mate­ri­al defect,” under which pro­ducts will have to meet both sub­jec­ti­ve and objec­ti­ve cri­te­ria in order to be con­side­red defect-free. Moreo­ver, the com­pa­ny sel­ling the pro­duct is requi­red to pro­vi­de the con­su­mer with updates in order to ensu­re that the digi­tal pro­duct con­forms to the con­trac­tu­al requi­re­ments for the dura­ti­on of the con­trac­tual­ly rele­vant period.

Prac­ti­cal notes

The pro­vi­si­ons of the Digi­tal Con­tent Direc­ti­ve app­ly pri­ma­ri­ly for con­su­mer con­tracts and to the degree that they affect B2B tran­sac­tions, their prin­ci­pal effect is exten­ding recour­se claims in the sup­p­ly chain. Com­pa­nies will be able to make dif­fe­rent arran­ge­ments with con­su­mers in the future with regard to objec­ti­ve defects in digi­tal pro­ducts, even if tho­se arran­ge­ments are to the consumer’s dis­ad­van­ta­ge. Howe­ver, they will only be able to do so if the con­su­mer is noti­fied befo­re agre­e­ing to the alter­na­ti­ve arran­ge­ment, and if the devia­ti­on from the Direc­ti­ve is express­ly and sepa­ra­te­ly agreed upon in the con­tract. It remains to be seen what posi­ti­on the courts will take with regard to the­se sta­tu­to­ry pro­vi­si­ons, but a pro­vi­si­on to the con­tra­ry in the seller’s GTCs is not likely to satis­fy the­se claims. Com­pa­nies would the­r­e­fo­re be well-advised to ana­ly­ze the requi­re­ments of the Digi­tal  Con­tent Direc­ti­ve in advan­ce and to revi­se their pro­cu­re­ment and sales con­tracts in a time­ly manner. 


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